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McCloskey v. State

September 16, 2008

GLENN MCCLOSKEY, PLAINTIFF,
v.
STATE OF CALIFORNIA, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER ON DEFENDANTS' MOTIONS IN LIMINE

This civil-rights lawsuit arises from Plaintiff's arrest for driving while under the influence of alcohol. Plaintiff contends that he suffered physical injuries during the arrest as a result of Defendants' use of excessive force.

Pending before the Court are Defendants' motions in limine to preclude the use of certain evidence and testimony at trial. The Court decides the matter on the papers submitted and without oral argument pursuant to Civil Local Rule 7.1(d.1). For the reasons stated below, the Court GRANTS motion in limine 1 of 3 (Doc. No. 50) and motion in limine 2 of 3 (Doc. No. 51), and DENIES motion in limine 3 of 3 (Doc. No. 52).

I. BACKGROUND

Plaintiff Glenn McCloskey is a retired fireman. Defendants Eric Flynn, Armando Arriaga, Omar Morales and David Dreher are the California Highway Patrol Officers that were involved in Plaintiff's arrest.

On May 27, 2004, Officer Flynn stopped Plaintiff while traveling northbound on Interstate 5. Plaintiff was arrested and charged with violation of Vehicle Code § 23152(a) and (b) (misdemeanor violation for driving with a .08 percent or more blood-alcohol level) and Penal Code § 148 (interfering with an officer in the performance of his duties). Plaintiff was later convicted of driving while under the influence, but the jury was unable to reach a verdict on the later charge.

On July 7, 2005, Plaintiff filed this lawsuit against the State of California and the officers involved in the arrest. Plaintiff alleges that during his arrest, the officers used excessive force and "slammed Plaintiff's face" on the pavement causing physical injuries. (Compl., at ¶¶ 10, 11.) Plaintiff further alleges that while in custody, Plaintiff was forced to take a blood test, which was done improperly and resulted in additional injuries. (Id. at ¶ 13.)

II. MOTION IN LIMINE NO.1 OF 3

Defendants seeks to preclude lay opinion testimony of percipient witnesses Deborah Bryant and Harvey Bryant (collectively, the "Bryants"). The Bryants witnessed Plaintiffs' arrest, and during their depositions opined as to the reasonableness of Defendants' use of force. For example, Deborah Bryant testified that Defendants' conduct was "overkill," and that they "were just a little to rough." (MIL 1, at pp.2--3.) Harvey Bryant stated that "the feeling I had that it was wrong, the way the individual was being treated by the police officers." (Id.)

Federal Rule of Evidence 701 allows opinion testimony by lay witnesses where the opinions are "(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue."

Fed.R.Evid. 701. This Rule, however, does not permit a lay witness to express an opinion as to matters that are beyond the realm of common experience and that require the special skill and knowledge of an expert. Randolph v. Collectramatic, Inc., 590 F.2d 844, 846 (10th Cir. 1979).

Here, one of the central issues is whether Defendants used excessive force during Plaintiff's arrest. The use of force in effecting an arrest is beyond the realm of common experience, and requires specialized knowledge and training on police policy and practices. U.S. v. Myers, 972 F.2d 1566, 1577 (10th Cir. 1992). Accordingly, the Court will grant Defendants' motion in limine to preclude the Bryants from opining about the reasonableness of Defendants' conduct in arresting Plaintiff.

III. MOTION IN LIMINE NO.2 OF 3

Defendants' second motion in limine seeks an order precluding any and all evidence concerning the disposition of the resisting arrest charge. Defendants contend that the disposition of the resisting-arrest charge is not relevant, and thus not admissible under Federal Rule of Evidence 402. Defendants further argue that the evidence is inadmissible because any probative value is outweighed by the danger of unfair prejudice. ...


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